Recent court rulings say 'detainer requests' from Immigration and Customs Enforcement (ICE) are not commands that local sheriffs have to abide by. Several Colorado sheriffs now say they could be liable for constitutional violations of due process if they follow ICE detention requests.

ByIvan Moreno, Associated PressApril 30, 2014

Denver — Several Colorado sheriffs will no longer honor requests from federal immigration authorities to continue to detain someone once they are eligible to be released on the charges for which they were initially arrested.

The move comes in the wake of recent court decisions in Oregon and Pennsylvania that found that such detainer requests from Immigration and Customs Enforcement are not commands that local jurisdictions have to abide by, and that sheriffs could be liable for constitutional violations for holding people past the time when they would otherwise be released.

Immigrant advocates have argued for years that these so-called ICE holds are merely requests, not commands, and that holding inmates on immigration detainers could constitute due-process violations.

Several Oregon counties have stopped honoring the ICE detainer requests as a result of the court cases, and the city of Philadelphia is limiting the use of such holds. In Washington state, two counties, Walla Walla and Kitsap, confirmed Tuesday that they would also stop complying with the detainer requests.

"It significantly reduces the possibility that Walla Walla County will get sued for similar conduct that got Clackamas County (in Oregon) sued," Sheriff John Turner told The Associated Press.

In Colorado, Boulder County Sheriff Joe Pelle said in an email shared with The Associated Press that inmates with ICE detainers will be released once any state or federal charges are resolved.

"This recent court decision in Oregon is a game changer regarding ICE holds on detainers," Pelle said in an email dated Monday. The email goes on to say that attorneys advised the sheriff that the office has "potential civil exposure, and no state statutory authority for holding people on detainers."

Pelle said in the email that they would make an exemption if ICE or any other federal law enforcement agency has an arrest warrant for an inmate. Mesa County in western Colorado is also emulating Pelle's decision, spokeswoman Heather Benjamin said.

Carl Rusnok, a spokesman for ICE, said in a statement: "ICE will continue to work cooperatively with law enforcement partners throughout Colorado as the agency seeks to enforce its priorities by identifying and removing convicted criminals and others who are public safety threats."

Mark Silverstein, the legal director of the American Civil Liberties Union in Colorado, which has been trying to change local policies on detainers, on Tuesday sent letters to every county sheriff urging them to stop honoring the ICE holds. Local jurisdictions don't have the power to enforce federal immigration laws, he said.

"There's no statutory authority to make an arrest because somebody is suspected of being present in the country in violation of the immigration laws," Silverstein said. He added that when ICE makes a detainer request, the agency is making a request for the sheriff "to do something that he has no authority under Colorado law to do."

The Oregon case involved a woman who, in March 2012, was found guilty of contempt of court and sentenced to 48 hours in jail. However, she was incarcerated for more than two weeks due to the ICE hold, even though she was eligible for pre-trial release after posting bail. A federal judge ruled earlier this month that the county that incarcerated the woman violated her rights under the 4th Amendment by prolonging her incarceration without probable cause.

The San Miguel County sheriff in southwestern Colorado announced a similar decision as Boulder on Tuesday. The change in policy came after a ruling last month in Pennsylvania involving an American citizen who was born in Puerto Rico held in jail for three days on an ICE hold because he was believed to be from the Dominican Republic.

Sheriff Bill Masters said he will still inform ICE whenever someone who is suspected of being in the country illegally is brought to the county jail. But he won't honor regular ICE detainers, which require that inmates be held for 48 hours after they post bond. Instead, Masters said ICE will have to file an arrest warrant signed by a federal magistrate explaining why someone should be held, just like deputies and police officers do when someone is arrested on state charges.

Masters said he isn't trying to make a stand on illegal immigration, but just wants to make sure that the 4th Amendment rights of all inmates to only be held with some documented evidence, whether or not they're citizens, are protected.

"I would feel terrible if someone got detained here that was an American citizen," said Masters, whose jurisdiction includes the resort town of Telluride.

Adams County Sheriff Doug Darr said he was meeting with attorneys Tuesday on how to proceed. "Nobody wants to get this wrong. Everybody wants to be within the boundaries of the law," he said.

U.S. Rep. Jared Polis, D-Colorado, said the sheriffs' decisions underline the need for overhauling the country's immigration laws. "This is all a result of Congress' failure to act," he said.

Immigrant advocates applauded the sheriffs. "I think this this is long past due. Detainers are just plain unconstitutional, period," said Hans Meyer, an immigration and criminal defense attorney.